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Saturday, July 9, 2011

On Juries and the First Amendment

The notion that the jury might acquit defendants "in the

teeth of both law and factsn7 has been deeply rooted in Anglo-

American law. Thematically, the foundational jury nullification

cases have been political cases involving the prosecution of

crimes of conscience against the government or the prevailing

social order.* Because of the preponderance of cases in the

literature, the jury nullification debate has been characterized

, by an analysis peculiar to these cases, that is, the dynamic of

a legally guilty defendant being acquitted because of the jury's

rejection of an unpopular law or an oppressive government or

the jury's embrace of the position of conscience held by the

accused ” (Dorfman, David N., "Fictions, Fault, and Forgiveness: Jury Nullification in a New Context" (1995). Pace Law Faculty Publications.

Paper 532.

To the point…” the jury's

rejection of an unpopular law or an oppressive government or

the jury's embrace of the position of conscience held by the

accused.” (ibid)

When one is called to Jury Duty, the Judge and Prosecutor and Defense Counsel put you through something called Voir Dire…”In the United States, it now generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury.”(from the Wiki article,’voir dire’)

In my experience, the Prosector runs this show, while the Defense Counsel plays second fiddle….and the Judge reads, or is otherwise occupied.

The purpose of this exercise is, ostensibly, to weed out those who are “not suitable”…a very subjective judgment.

There has been, for many years now, a concerted effort by Jurists and Prosecutors to push down the Memory Hole a time honored concept….Jury Nullification.

Jurors, and potential Jurors, are “Instructed” as to their Duties…by the closest Authority Figure , the Judge or his delegate. These Instructions are often in such arcane and technical language, that the average Juror cannot fully understand them.(wiki;”jury instructions”)

That aside, increasingly…and over many years…Jurors have been instructed that their Duty lies solely in the finding of Fact..

Any mention of “Nullification” is the surest way for a potential Juror to be excused…and if such sentiments are well concealed by said Juror, so that he becomes a member of the Petit Jury, Nullification (or it’s advocacy) often ends in Contempt charges. Judges and Prosecutors really dislike the idea of Nullification.

So, what is Nullification?

From the Wikipedia article:” Jury nullification is a de facto and traditional power of juries. Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal (see related topics res judicata and double jeopardy).”

I’ll go further than this…Nullification is the Power of the Jury to Judge the Law, itself.

Jefferson was an advocate of this approach, believing that Juries represented the last line of defense, against Tyranny….of Government, run amok. In America of the early 21st Century, such a check on Government overreach is much needed. Post 9-11, the Surveillance State has grown by mighty leaps…often without one arm knowing what the other is doing. The War on Terror, in my opinion, merely expanded the Overreach that was begun by the “War on Drugs”…which, in turn, flowed from the Anti-Communist Hysteria that continually reared it’s head during the 20th Century. The effect of all these “Wars” has been a gradual, de facto, Repeal of much of the Bill of Rights….especially the Fourth, and I’ll argue, the First Amendments.

This gets to the very heart of what I’m on about, this morning…It is my First Amendment Right to Freedom of Conscience to which the anti Nullification Movement does Injury.

If I am to try a case involving, say…a person accused of violating a Blue Law, against the sale of alcohol at 11 am, Sunday morning…my Conscience dictates that the Law, itself, is Unjust….and, thus, unenforceable. Similarly, if the Accused is before me for Smoking a Cigarette in a public park, when there is an Ordinance against such behaviour…my Conscience is very clear…the Law, itself is Wrong.

Is my Conscience to be left at the Courthouse door?

The opposition to Nullification would have it so…and maintain that , in fact, a Jury is merely an arm of the Government….poorly paid Lackeys, who must do as they’re told, by Authority Figures.

On the contrary…I maintain that Authority is not given the Judge, the Prosecutor, nor anyone else, to Compel me to ignore the Dictates of my Conscience. Behind the First Amendment Guarantees of Freedom of Speech, Religion, Assembly, the Press, and Redress lies the freedom to Form one’s own Thoughts…to devise one’s own system of Ethics and Morality, and to then Live by them.

In this Age of Giant Government, and distant, if not Deaf, “Representatives”, there is little that the common man can do to check the advance of Tyranny. Nullification, of the Law, itself, by the Jury…and, necessarily, in the particular Case, before it…is an Important, if largely forgotten, Right and Duty.

I encourage my Countrymen to Think about these things, and to remember them when they are called to serve in such a capacity.

Carpe Libertatem,

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